Tuesday, 27 January 2015

Time’s up: judicial review claim for super-sewer dismissed

judicial review timing

From the London Evening Standard 22/01/15:

A council was today accused of being “totally incompetent” after the legal challenge against London’s controversial super-sewer collapsed because it submitted court papers late.

Southwark’s leader today sought to explain the cock-up by blaming “ambiguous” rules setting out deadlines for submitting papers.

Don’t snigger.  However much you might want to.

Lib Dem opposition leader at Southwark Anood Al-Samerai said: “We all trusted the council to represent our community in court.

“Now the case for a judicial review has been thrown out all because the council couldn’t manage to submit its paperwork on time.

The council explained it had been working to a time-frame which would have been acceptable had new reforms currently being discussed in Parliament been passed.

But with the new rules yet to come into full force, the judge applied existing rules which deemed the council’s court papers to be late.

On the face of it, this sounds unforgivable.  Job number one in running any kind of litigation is to get the timing right.  Heck, it’s built into most matter-management software these days.  Superbly formed legal arguments don’t count for much if your claim is thrown out for failing to adhere to the time requirements.

But is the relevant rule on timing as ambiguous as the council claimed?

Let’s have a look.

There’s a good write-up on this by the Government Lawyer, so I won’t bother reinventing the wheel paraphrasing.  Yep - I’ll take the lazy route and quote the source verbatim:

The Planning Act currently says that the claim form must be:

"filed during the period of 6 weeks beginning with ... the day on which the order granting development consent is published."

If the [decision] is published on Thursday 1 January, then is the last day for a claim Wednesday 11 February or Thursday 12 February?  It seems that the judge decided it was the former yesterday.

Time to get counting on your fingers.

The Criminal Justice and Courts Bill, which is almost at the point of Royal Assent, will amend the deadline in Planning Act (and several other acts). Section 91(4)(c) will change the above text to the claim form must be:

"filed before the end of the period of 6 weeks beginning with the day after ... the day on which the order granting development consent is published."

That would make it 12 February in the example.

The Civil Procedure Rules say:

"Where the application for judicial review relates to a decision made by the Secretary of State or local planning authority under the planning acts, the claim form must be filed not later than six weeks after the grounds to make the claim first arose."

That suggests Thursday 12 February.

Yes.  That makes a lot of sense.  It follows the general rule on calculating time periods under the CPRs: the start day should normally be regarded as day zero and you count forward from there, unless the relevant period is described as "beginning with" a specified day, in which case that day is included in the period.

Having said that, the Planning Act 2008 is not one of 'the planning acts' in that context.

Update: I’ve edited the following segment of the post after initial publication.  Angus Walker, author of the post I quote above (and of the Planning Act 2008 blog), kindly drew my attention to section 118 of the Planning Act 2008.  That section sets out the time period for bringing a relevant JR claim and overrides the CPRs.  In light of that, my points in the following two paragraphs are no longer valid.  My bad.

Whoah. Back up a second there.  It’s not one of the planning acts?  Let that sink in for a moment.

A cursory read of section 336 of the Town and Country Planning Act 1990 suggests that the Planning Act 2008 indeed isn’t one of the relevant ‘planning acts’.   If it isn’t, then CPR 54.5 (5) doesn’t apply, meaning the application must surely be subject to the general rule on timing for judicial review claims set under CPR54.5(1).  That rule says the time period for bringing an application for judicial review must be made promptly and in any event within three months from the date when grounds for the application first arose.

Either way, I can’t see that the ‘Wednesday 11 February’ interpretation is the right one.  From Southwark council’s perspective, the decision is worth challenging.  (It’s known as a ‘punt’ in the legal profession which, yes, is a legal term of art.  Ahem.)

But what a frickin’ mess!  Wouldn’t some harmonisation provisions on timing applied to all types of domestic legislation and the civil procedure rules work wonders here?  

That much-cited aspiration for legal certainty should apply to the procedural stuff as well as to the substantive law.

And it would save members of the legal provision from a lot of grey hair and red faces.

Monday, 26 January 2015

It’s a hard knot life

Guest PostJapanese Knotweed
Japanese Knotweed has received some legislative attention recently, perhaps due to recent media interest in how it is affecting the value of properties. The new Anti-Social, Behaviour, Crime and Policing Act 2014 seeks to address the issue where homeowners do not tend to the issue of knotweed on their property. According to the legislation homeowners might fall foul of the Act where they do not act reasonably to control or prevent the growth of knotweed.

Under the Act a Community Protection Notice can be issued by a local authority or the police, where the homeowner actions are a) ‘having a detrimental effect, of a continuing and persistent nature, on the quality of life of those in the locality’ and/or b) the homeowner acts ‘unreasonably’. Moreover, a failure to act also falls under conduct that is classed as ‘unreasonable’. The notice, therefore, now requires an individual to control or eradicate the knotweed on their property and breaching the notice without a reasonable excuse is a criminal offence. The notice must state: (1) what the action is that is having a detrimental effect on the quality of life of those in the locality; (2) a requirement that such actions will cease; and (3) that the homeowner will treat this INNS (Invasive Non-Native Species) within a specific time and prevent any future occurrence. The notice should also state that sanctions include a fixed penalty of £100 and on summary conviction a fine of £2,500 for individuals and £20,000 for organisations.

An individual or a body can activate a "community trigger" to request that the local authority deal with a persistent or previously ignored anti-social behaviour problem when their case meets a locally defined threshold. This could apply to knotweed or any other INNS. The local authority has a duty to undertake a case review and consider what action they can take to resolve the problem when someone activates the trigger. The local authority can still carry out a case review where the threshold has not been met, based on factors such as the persistence of the problem, the harm (or potential harm) caused, or the adequacy of response from agencies.  

The question remains as to whether this legislation is actually necessary, with one blogger describing it as ‘using a sledge hammer to crack a nut’.  It is hard to understand what the Act can achieve that the law of private nuisance cannot. The power to bring action against one disrupting your reasonable enjoyment of your land has always rested with the individual, it is difficult to see what basis there is for this new legislation.  In addition the new power does not address any damage that a private individual may have suffered.  If an individual wished to claim for damage that he had suffered personally then he would have use the common law of nuisance and or negligence to get redress.

So where does this new legislation leave us? With the threat of an ASBO for knotweed on top of potential private enforcement it is only likely to increase the stigma attached to properties affected by knotweed and cause even greater diminution of value as potential buyers seek to avoid affected properties at all costs.  

Rodger Burnett, Japanese Knotweed Claims

Monday, 19 January 2015

Party Games: pin the invoice on the schoolchild

children's party
From BBC News 19/01/15:

A five-year-old was billed for failing to attend a friend's birthday party - resulting in threats of legal action.

Alex Nash, from Cornwall, was invited to the party just before Christmas.

An invoice for £15.95 was sent by his schoolfriend's mother Julie Lawrence, who said Alex's non-attendance left her out of pocket and his parents had her details to tell her he was not going.

Alex's father Derek said he had been told he would be taken to the small claims court for refusing to pay.

Alex's parents, from Torpoint, had accepted an invitation to the party at a dry ski slope in Plymouth, Devon, just before Christmas.

However, they realised their son was double-booked and due to spend time with his grandparents, which he did.

I suppose sending an invoice is one way of doing it. (But really – what was she thinking?)

Putting the silliness of the situation to one side for a moment, could Mrs Lawrence make this claim stick? Let’s think about that one.

I think the answer’s probably no.

An action in contract would almost certainly fail for there being no intention to create legal relations, as well as there being serious doubts over the validity of both consideration and capacity (assuming, on this latter point, that it was the five year old who was entering into this supposed contract).

On the consideration point, I suppose it’s just about conceivable that a person agreeing to provide a place for another at a party, and that other agreeing to attend that party, might qualify as valid consideration. But I doubt it. Legal commentators have long observed that a court will always find consideration in circumstances in which it wants to make that finding. But I really can’t imagine that this would be one of those situations. You’d need a pretty creative advocate to even have a chance of successfully arguing that consideration can be reasonably inferred here.

So contract’s out. What else can we try?

What about tort?  Would Mrs Lawrence have any better luck bringing a claim for negligence (against the parents of Alex)?

I don’t think so.  Even if a duty of care could be established here, any claim in negligence would almost certainly fall foul of the general rule against recovery for pure economic loss.  What a bummer.

What about a claim in restitution then (we’re really scraping the barrel now)?

But there’s been no unjust enrichment by Alex or his parents. Another dead end.

I think we’re out of options, folks.  At least I can’t think of any.

So what might Mrs Lawrence have done differently?

I suppose she might have agreed with Alex’s parents that if he didn’t show up for the party, they’d pay her the relevant admission fee, and she could have recorded that agreement in a deed (correctly executed of course).

But short of that, I think she’ll have to whistle for her money.

And now the media have gotten hold of the story, her plan to try and recover that fifteen quid has backfired spectacularly.

Oh well. You can’t win them all.

Friday, 16 January 2015

UCAS Applications – Oh the pain

Apparently it’s that time of year again.

UCAS ApplicationFrom the Telegraph 15/01/15:

[It’s] when panic reigns in households inhabited by 17- and 18-year-olds across the country. Schoolbags are thrown across kitchens; bedroom doors are slammed; homework left undone and tantrums even more frequent than usual.

January 15 marks UCAS deadline day, and the beginning of the end of many a school career.

Oddly enough, I don’t remember UCAS applications being that much of a ballache for me.  But I’m sure it was. 

My only distinct memory of the process (some 12 years ago now), was the pain experienced by one of my peers who’d made the mother of all cock-ups filling out her hand-written application form.  She’d spent days finalising that thing, only to be informed by our form tutor that she’d spelt the college’s address incorrectly and she’d have to start afresh.

To describe her reaction as a meltdown doesn’t even come close.

Anyway, the Telegraph have compiled some application form howlers which are well worth a giggle.

Here are some of my favourites.

"Having been head of my form and captain of the debating club, I have grate communication skills."

Of course you do.

"'Eighty per cent of success is showing up.' I feel this attitude correctly demonstrates my passion for Literature where, indeed, you only have to 'turn up' and read the books and to fully understand the topic. I was form captain in Year 7, indicating my sense of responsibility. I enjoyed the challenge of my duties, which included fetching the register and making people sign up for sports days. Also, this year I was voted head girl because I made the most hilarious speech ever. This demonstrates my skill at creative and persuasive writing."

I wouldn’t be too sure of that.

"Thanks for considering my application and I hope I will here from you soon."


"I am hoping to pass my driving test so I can drive to -insert uni name here- everyday!"

All universities like to feel special.

"Economics is a diverse subject, as economics can be related to anything, especially during economic crisis, which forces to think economically, whereas maths has been long one of my favourite subjects, as mathematics can be applied everywhere, moreover, mathematics is useful in everyday life."

There’s nothing like reading your work through, is there?

"I have a black belt in karate and enjoy marital arts."

Is that a typo or a euphemism?


I’m sure that over the years, a fair few budding lawyers have described their deep interest in ‘pubic law’ (rather than the far less embarrassing ‘public law’).

Monday, 5 January 2015

Back to work blues

Well, it had to happen sometime. Normal service at work has been resumed and I’m once again a sardine wedged into a train-shaped tin disciplined commuter.

Actually, I found the Christmas break this year quite relaxing and I’ve had two full weeks off, so I really mustn’t complain.

Shortly before my previous blog post – published on Christmas Eve – I took the Law Society’s Christmas quiz, you know, to really get me into the festive mood.

Some of the questions struck me as strangely esoteric, unless you’ve got a perfect memory for statistics on family law issues and the like. I was rather disappointed with my score of 7/12 and, as I recall, the festive-flavoured ale I was savouring at the time did little to quell that sense of disappointment.

Still, the quiz had a Christmassy background and Christmassy music and at least the Law Society did something to mark the time of year. It’s nice to know those fees for practising certificates aren’t going entirely to waste.

Law Society Christmas Quiz
On an entirely separate subject, has everyone noticed that hot cross buns have suddenly taken the place of mince pies, stollen cakes and panettone loaves in the supermarkets now? I died a little bit inside when I saw our Morrison’s bakery stuffed with hot cross buns on 30 December. And it’s not the first time this subject has got my panties in a bunch.

Roll on Easter.